James Hayes v BHP Coal Pty Ltd

[2017] FWC 7045

[2017] FWC 7045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Hayes
v
BHP Coal Pty Ltd
(U2017/3138)

COMMISSIONER SIMPSON BRISBANE, 22 DECEMBER 2017

Application for an unfair dismissal remedy – alleged breach of the Charter Values and Code of Conduct – alleged failure to follow lawful and reasonable direction – alleged aggression and intimidating behaviour – breakdown in communication – Applicant not told of direction not to refuel truck – Applicant did not fail to follow a reasonable direction – Applicant did not have fundamental issue with contractors – investigation flawed - Applicant engaged in misconduct but not sufficient to warrant dismissal – Reinstatement ordered – Order for continuity of service – Order for payment of remuneration lost – amount reduced because of misconduct

[1] On 22 March 2017, Mr James Hayes applied pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] Mr Hayes was employed by BHP Coal Pty Ltd (BHP) as a Mine Employee at BHP’s Saraji Coal Mine in Dysart, Queensland, from 4 March 2008 until 15 March 2017. 1 On 18 January 2017, an incident occurred between Mr Hayes and Mr Mark Freney, who is employed by Downer EDI at the mine in the role of Supervisor Mobile Maintenance.2

[3] BHP conducted an investigation into the incident and issued Mr Hayes a show cause notice on 22 February 2017. 3 Mr Hayes responded to the show cause notice on 27 February 2017.4 On 20 March 2017, BHP representatives met with Mr Hayes and his representative and advised Mr Hayes that his employment would be terminated.5

[4] Mr Hayes submitted that the dismissal was harsh, unjust or unreasonable. Mr Hayes submitted that there was no valid reason for his termination and that he was not provided with the reasons for his dismissal prior to the termination. 6

[5] Mr Hayes is seeking orders under s391 and s392 that;

(a) He be reinstated to his former position; and
(b) He maintain his continuity of employment; and
(c) He is compensated for lost wages as a result of the termination.

[6] In the alternative, if the Fair Work Commission (FWC) finds he was unfairly dismissed but that an order for reinstatement is inappropriate, Mr Hayes seeks an order for compensation for lost wages be made.

[7] The matter was listed for Hearing of the substantive matters on 12, 13 and 14 September 2017 in Mackay. Mr Hayes was represented by Mr R Anderson of the Construction, Forestry, Mining and Energy Union (CFMEU). BHP was represented by Mr A C Braithwaite of Counsel instructed by Ashurst. Closing arguments were heard on 26 October 2017 in Brisbane.

Legislation

[8] Section 385 of the Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[9] Section 387 of the Act states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

The 18 January 2017 incident

[10] On 18 January 2017, Mr Freney made arrangements with Mr Nathaniel Jorgensen, employed by BHP as an Ancillary Maintenance Supervisor, and Mr Seaforth McKenzie, employed by BHP as a Service Person, for Service Truck 2 (ST2) to be delivered to the Wash Bay at the end of the shift for a scheduled service. 7 Mr Freney advised Mr Jorgensen that ST2 was to have an empty fuel tank.8

[11] On 18 January 2017, Mr Hayes operated ST2. 9 Mr McKenzie advised Mr Hayes that he was to ensure that ST2 was ready for a scheduled service at the end of the shift.10 Mr Hayes was not informed that ST2 was to have an empty fuel tank.11 Mr Hayes said the term used by Mr McKenzie that ST2 was due for “a service” was a term used to refer to the truck itself, not the module (tank). Mr Hayes understood that it was standard practice for ST2 to have a full fuel tank at the end of a shift.12 Mr Hayes had received training that service trucks were to be filled with fuel at the end of a shift and was aware that complaints had been made when service trucks had not been left with a full tank of fuel.13

[12] At around 12pm on the same day, Mr Freney made arrangements with Mr Steven Ford, employed by Downer EDI as a Truck Washer, to attend the Wash Bay that afternoon to wash ST2 and prepare it for a service. 14 Mr Freney asked Mr Ford to look out for ST2 after 2:30pm.15

[13] Sometime that afternoon Mr Hayes took ST2 to the Wash Bay and washed ST2. 16 At approximately 3:15pm Mr Ford saw ST2 being driven away from the Wash Bay and towards the Fuel Farm (part of the Maintenance Workshop).17 The Maintenance Workshop is a few minutes’ walk away from the Wash Bay.18

[14] Mr Ford recognised the driver of the vehicle as an operator he had interacted with previously, however at the time he did not identify the driver as Mr Hayes. 19

[15] Mr Ford informed Mr Freney that he had seen the operator of ST2 drive away from the Wash Bay. Mr Freney believed this was at approximately 3:30pm. 20 Mr Hayes filled ST2 with fuel at the Maintenance Workshop.21

[16] Mr Freney attended the Maintenance Workshop with Mr Ford to arrange for ST2 to be sent back to the Wash Bay. 22 When he arrived at the Maintenance Workshop, Mr Freney could see that ST2 was being filled with fuel but could not see the operator of ST2.23

[17] Mr Freney and Mr Ford went to the crib room adjacent to the Maintenance Workshop in an attempt to locate the operator of ST2. 24 Mr Freney and Mr Ford located a worker in the crib room; Mr Freney assumed it was the operator of ST2.25

[18] Mr Hayes was standing in the crib room when he noticed Mr Freney and another worker (who was Mr Ford) approach the room. 26 Mr Hayes did not know the other worker’s name but understood that the other worker was employed by Downer EDI as a Fitter.27

[19] Mr Hayes recognised Mr Freney and was aware that Mr Freney worked in the mine’s Maintenance Workshop as an employee of Downer EDI. 28 At the time of the incident, Mr Hayes claimed he was not aware that Mr Freney was considered by BHP to be a supervisor with the authority to issue him with directions or that he had a supervisory role in relation to his employment.29

[20] Mr Hayes and Mr Freney then engaged in a verbal exchange which triggered the events that led to Mr Hayes’ termination. Mr Ford witnessed parts of the exchange. 30

The exchange

[21] The exact particulars of the verbal exchange are disputed by the parties. It is not disputed that the initial exchange occurred at the door to the crib room. 31

[22] Mr Freney said he approached Mr Hayes. Mr Ford agreed Mr Freney approached Mr Hayes. 32 Mr Ford said that Mr Freney was at the door first and he assumed Mr Freney was holding it open, Mr Ford said Mr Freney was just outside the door, and Mr Hayes was just inside the door about half a metre apart.33 Mr Ford said he could only see Mr Hayes from the shoulders up, and Mr Freney had his back to him.

[23] According to Mr Ford Mr Freney said words to the following effect: “Why is that truck being fuelled up? 34 We need ST2 back at the Wash Bay for a wash and service.”35 Mr Freney claimed his opening statement was to the effect of “Mate we need ST2 back at the wash pad for wash and service”. Mr Hayes said he and Mr Freney said hello to each other,36 and Mr Freney did not identify himself as a supervisor and simply said words to the effect of “you need to unhook that truck and take it to the wash slab.” Mr Ford accepted in his oral evidence he was probably not in a position to hear the first words spoken between Mr Hayes and Mr Freney.37

[24] Mr Hayes did not understand this to be a direction to him at that time. 38 Mr Freney’s evidence was also that this was not a direction to Mr Hayes.39 Mr Ford agreed he did not hear Mr Freney give Mr Hayes a specific direction in relation to unhooking the fuel pump.40

[25] Mr Hayes claimed he advised Mr Freney that ST2 had already been washed and that it was almost full. 41 Mr Hayes claimed that Mr Freney said that he did not want the vehicle to be full of fuel. Mr Hayes said he was confused by this response because based on what he had been told his understanding was that there was no reason for the vehicle to be empty and that he should ensure it was full as would usually be the case. He said he considered that ensuring ST2 was full of fuel was part of his job and he had to do it. He said he had not received any instruction or request to leave ST2 empty of fuel.42

[26] Mr Freney stated that in reply to his request to unhook the truck, Mr Hayes said words to the following effect: “If you cunts can’t be there on time I’m not waiting around. I need fucking ST1 returned before you get ST2.” 43 Mr Ford gave a similar account.44 Mr Freney then claimed he replied “I’m not sure when ST1 will be up but it’s being worked on….”45 Both Mr Freney and Mr Ford alleged that Mr Hayes spoke in a raised voice with an aggressive tone,46 although Mr Ford said both had raised voices at some stage.47 Mr Freney said he did not swear directly at Mr Hayes at any stage, and cannot recall swearing, but may have done so once or twice.48

[27] Mr Freney claimed Mr Hayes said the following:

“If you or Downer had any fucking idea what was going on, if you’d talked to the other shift you would know that ST1 was planned in at 10:00 am this morning and you should have people straight on it. You couldn’t organise shit. Who’s going to wear the fucking down time? Are you going to wear the fucking down time when there are no trucks or diggers being fuelled?”

[28] Mr Hayes maintained that Mr Freney was the aggressor 49 and raised his voice and pointed at him.50 Mr Freney denied yelling at Mr Hayes but acknowledged he raised his voice.51 Mr Ford did not recall Mr Freney yelling at Mr Hayes.52

[29] Mr Hayes acknowledged that during the exchange he said words to the effect of: “You can have the cunt of the thing.” 53 Mr Hayes maintains that he did not call Mr Freney a “cunt” and did not direct that term towards Mr Freney personally.54

[30] Mr Hayes referred to Service Truck 1 (ST1) because he was aware that ST1 had been scheduled for repair on the same day and that another service truck would be needed for the night shift. 55 Mr Hayes stated that Mr Freney had said to him that he was not aware about the scheduled repairs to ST1.56

[31] Mr Hayes disputed that he made some of the statements attributed to him. 57 Mr Freney claimed he understood these statements to be questioning his ability and the ability of Downer EDI to carry out the work it was contracted to BHP to perform.58

[32] Mr Ford said he witnessed Mr Hayes yelling at Mr Freney and waving his arms around. 59 Mr Ford moved back from the exchange and did not hear everything that was said.60 Mr Ford said that he witnessed Mr Hayes yelling at Mr Freney in close proximity to his face.61

[33] Mr Freney said that Mr Hayes leant towards him in a manner “aggressively invading my space.” 62 Mr Hayes denied leaning in towards Mr Freney during the exchange.63 Mr Hayes and Mr Freney were about half a metre apart during the exchange.64 Mr Freney said he felt intimidated and threatened by Mr Hayes’ behaviour and felt that Mr Hayes might physically attack him.65 Mr Ford said he did not recall seeing Mr Hayes step backwards away from Mr Hayes.66

[34] Mr Freney turned around and started to walk towards ST2 and the fuel pump. 67 Mr Freney claimed he said words to the following effect to Mr Hayes “Can we remove the fuel gun? I needed the truck empty.”68 Mr Freney claimed Mr Hayes said “It’s nearly full. Not fucking happening.”

[35] Mr Freney claimed that at this point he began to worry that the altercation could turn physical as Mr Hayes was continuing to yell at him in an aggressive tone with his face close to Mr Freney’s. Mr Freney claimed he then said “Mate I need the truck. It is planned work. It needs to happen. We need it get the fuel gun off it for a start.” Mr Freney claimed that he then began to retreat back towards the area where ST2 was being refuelled in an attempt to get away from Mr Hayes as he claimed it was apparent he could not reason with Mr Hayes.

[36] Mr Hayes said he argued with Mr Freney that it was standard practice for service trucks to be left with a full tank of fuel at the end of the shift, that the fuel gauges on the vehicle did not work and it was his understanding based on what he had been told about the maintenance to be performed. 69 Mr Hayes claimed Mr Freney interrupted him and would not let him finish.70 Mr Freney replied that he needed ST2 for planned maintenance.71 Mr Hayes and Mr Freney argued about whether ST2 should continue to be refuelled.72

[37] Mr Hayes claimed he asked Mr Freney whether ST1 would be ready for the night shift. He said he asked this because ST1 had been scheduled for repair on that day shift and another service truck would be needed that night. According to Mr Hayes, Mr Freney then became more aggressive and said words to the effect of “I told you earlier that we wouldn’t be able to touch that today.” Mr Hayes claimed Mr Freney acted in a sharp and aggressive manner, raised his voice, pointed at him and stood up tall with his chest out.

[38] Mr Hayes claimed he had not been involved in any earlier discussion with Mr Freney and was confused about the request from Mr Freney that ST2 should be empty of fuel. 73 Mr Hayes said he had not previously been instructed or requested to leave ST2 empty of fuel by Mr Freney, Mr Jorgensen, Mr McKenzie or the Control Room.74 Mr Hayes said he advised Mr Freney he had not had such a discussion with him and did not know anything about any request to leave the module empty. Mr Hayes claims he then suggested that Mr Freney may have had that conversation with Mr McKenzie and that he may be mixed up.75

[39] Mr Hayes said he told Mr Freney that no such message had been passed on to him and he understood ST1 had been taken to the Workshop at around 10:00am that day to have repairs undertaken on leaks to the reel cabinet. Mr Hayes said he also told Mr Freney that he was not the one who had taken ST1 to the Workshop. Mr Hayes claimed Mr Freney then said that he had not been told about the scheduled repairs to ST1. Mr Hayes claimed he suggested to Mr Freney that he and his counterparts might need to communicate better as that was the information that had been passed onto “us”. Mr Hayes said at this point he became somewhat frustrated with the way in which Mr Freney was acting toward him. 76

[40] Mr Hayes said that Mr Freney then suddenly and dramatically held out his hands in front of him, as if he was holding an invisible ball, and started shaking them. Mr Hayes said while he was doing this, he said “it’s planned work” in an aggressive manner. Mr Hayes said he was taken aback by Mr Freney’s behaviour and his aggressive manner and became agitated himself. Mr Hayes claimed he then said “that’s fine but we need ST1 back for nightshift.” Mr Hayes said at this point Mr Freney then said “right, what’s your name” and looked at his shirt on which his name was printed. Mr Hayes claimed Mr Freney pushed his face toward Mr Hayes chest then said “James” and threw his hands in the air, walked away from the crib room door, and started walking towards ST2. 77

[41] Mr Ford said as he did not want to be involved in the altercation he moved backwards so that he was approximately four metres away from Mr Freney. He said while he could not hear the whole exchange he recalled he could see Mr Hayes yelling at Mr Freney in close proximity to his face and waving his arms around, and he could not recall Mr Freney yelling at Mr Hayes. Mr Ford said after approximately one minute Mr Freney turned around and started to walk towards ST2 and the fuel pump.

[42] Mr Freney claimed Mr Hayes overtook him and walked ahead of him as he walked toward ST2. Mr Ford was unsure who arrived at the bowsers first. 78 Mr Ford claimed Mr Hayes was yelling and Mr Freney was speaking in a shocked tone with a slightly raised voice. According to Mr Ford Mr Hayes said “It’ll be fuelled up in two fucking minutes.” He said Mr Freney replied “But we don’t want it fuelled up.” Mr Ford then said Mr Hayes replied “I’m only yelling at you because you are walking away. It will be fuelled up in like two minutes.” Mr Ford accepted Mr Hayes may have been saying that just to get attention so he could be heard.79 Mr Ford said Mr Freney replied “I don’t appreciate being yelled at and there is no need to act in that way.”

[43] Mr Freney’s evidence is that Mr Hayes stood over the controls of the fuel pump with his body. Mr Freney said he was four to five metres away from the fuel pump when he decided not to go closer to ST2 or Mr Hayes while he was standing over the fuel pump. 80 Mr Freney claimed Mr Hayes said “That’s why I had to shout, because you are walking away from me. You don’t want to talk, that’s why I had to shout.” Mr Ford was unsure about where Mr Freney and Mr Hayes were standing in proximity to each other at this point.81 Mr Freney said he was not authorised to disconnect the fuel82 and confirmed he wasn’t trying to get to the bowser.83 Mr Freney accepted that Mr Hayes was not following him but going to the bowser.84

[44] Mr Freney and Mr Ford walked back towards the Maintenance Workshop towards the supervisors’ offices. 85 Mr Hayes followed at a distance of about 10-15 metres.86

[45] Mr Freney went to Mr Jorgensen’s office to report the incident; however, Mr Jorgensen was not in his office. 87 Mr Freney left the supervisors’ offices at about the same time that Mr Hayes arrived.88

[46] Mr Freney walked towards the office of Mr William Kidd, Field Maintenance Superintendent. Mr Kidd’s office is located on the second level of the Maintenance Workshop and is accessible by a flight of stairs. 89 Mr Kidd was not in his office.90

[47] When Mr Freney was leaving Mr Kidd’s office he noticed Mr Hayes walking up the flight of stairs towards Mr Kidd’s office. 91 Mr Freney and Mr Hayes had a short exchange on the flight of stairs to the effect that Mr Kidd was not in his office.92

Consideration

[48] Based on the findings of an investigation into Mr Hayes’ conduct on 18 January 2017, BHP terminated Mr Hayes’ employment for misconduct. 93 BHP submitted that Mr Hayes’ conduct failed to comply with the BHP Charter Values (Charter Values) and BHP Code of Conduct (Code of Conduct).94

[49] BHP also submitted that Mr Hayes failed to follow a lawful and reasonable direction from Mr Freney to unhook ST2 from the fuel pump. 95 BHP submitted that Mr Hayes was provided this direction on at least two occasions.96

[50] It was submitted for Mr Hayes the exchange was in the nature of a relatively minor argument concerning ST2. 97

[51] BHP submitted that Mr Hayes’ behaviour was harassing and intimidating in breach of the Charter Values and Code of Conduct, 98 namely: that he yelled at Mr Freney in an aggressive and disrespectful manner; indicated that Mr Freney and employees of Downer EDI could not perform their jobs effectively; swore repeatedly at Mr Freney in an aggressive and disrespectful manner; waved his hands at Mr Freney and stood in close proximity to Mr Freney’s face; used his body to block Mr Freney from attempting to unhook the fuel line from ST2 and followed Mr Freney while yelling at him.99

[52] Mr Hayes submitted that BHP had no basis for determining that his behaviour of 18 January 2017 was in contravention of the Charter Values or Code of Conduct. Mr Hayes submitted that his conduct did not amount to bullying or harassment. 100 In addition, Mr Hayes submitted that the verbal exchange between him and Mr Freney was mutual, that Mr Freney had also sworn and acted aggressively, that his conduct was taken out of context, and that his swearing was not directed at any individual.101

[53] It was submitted that both Mr Freney and Mr Hayes swore and raised voices during the exchange, but neither swore directly at the other, and any swearing was limited to swearing in the context of the situation rather than personal insults. 102

[54] Mr Hayes said that he did not physically intimidate Mr Freney 103 and did not physically block Mr Freney from the fuel pump, as Mr Freney was four or five metres away.104

[55] To be a valid reason within the meaning of section 387(a) the reason must be ‘sound, defensible or well founded.’ 105 The entire factual matrix is relevant.106

[56] In reference to the Full Bench decision in Rode v Burwood Mitsubishi 107it was submitted for Mr Hayes that on an objective analysis of the relevant facts the termination is not defensible and justifiable.

[57] Mr Hayes correctly submitted that in cases involving misconduct the employer bears the onus to establish the misconduct took place, 108 and the FWC must establish for itself whether the misconduct occurred.109

[58] The test is an objective test. 110 It was submitted for Mr Hayes that the dismissal was not sound, defensible or well founded and was capricious and prejudiced on the basis that;

a) His conduct was not of such a serious nature as alleged by BHP in relation to the language used, the physical actions of Mr Hayes or his conduct more generally.
b) The purported direction was not lawful and reasonable.
c) The Respondent failed to follow its own policies and procedures in relation to the alleged conduct and the dismissal was capricious and prejudiced.

[59] It was said for Mr Hayes his evidence in relation to the conversation on 18 January must be preferred, and he co-operated with the investigation and gave forthright and honest evidence.

[60] It was said BHP’s witnesses provided inconsistent statements, were not interviewed in detail by BHP, exaggerated and had very different recollections of the relevant events. BHP did not get statements from Mr Freney or Mr Ford in a timely manner and Mr Freney read Mr Ford’s initial statement before he was interviewed.

[61] It was submitted for Mr Hayes that the differences between the statements of Mr Freney and Mr Ford are so significant that it can only reliably be said that there was a verbal altercation between Mr Freney and Mr Hayes.

[62] BHP summarised its contentions in closing as follows;

a) The conduct on behalf of Mr Hayes that warranted dismissal was harassing, aggressive, and intimidating behaviour towards Downer supervisor Mr Freney;
b) It was protracted, caused by Mr Hayes physically pursuing Mr Freney and continuing to engage with him in an intimidatory aggressive manner; 111
c) The conduct left Mr Freney in great distress, witnesses by others both contemporaneously and for some duration after the event; 112
d) BHP was right to be deeply concerned about the behaviour of Mr Hayes and acted in a manner which was both protective of its values and its workers over which it holds a duty of care;
e) Mr Hayes had no proper basis to be upset. Whilst it was true he had not been informed the vehicle he was driving ought to be left empty of fuel, he was directed by a supervisor (Mr Freney) to cease fuelling the truck – that being a usual component of servicing the truck;
f) Mr Freney, by his position, had authority to issue such a direction; 113
g) Mr Hayes was well aware Mr Freney held a supervisory role and was aware supervisors, regardless of their location at the mine, had authority to issue reasonable directions; 114
h) The assertion that he didn’t know Mr Freney was a supervisor only became a limb of his complaint during his termination meeting; 115
i) An attempt has been made during the course of the hearing by Mr Hayes to explain, under cross examination, the early absence of the assertion he was not aware Mr Freney was a supervisor. He did this by, in effect, verballing his direct supervisor Mr Jorgensen. That is, he gave evidence he had been told Mr Freney was a supervisor by Mr Jorgensen very shortly after the incident – and that was when he learnt for the first time Mr Freney was a supervisor; 116
j) This assertion was false, as is proven by the evidence of Mr Jorgensen, 117 and was a recent invention during his sworn testimony to rally against the difficult questions being asked under cross examination. The preparedness to do so demonstrably undermines the credibility of Mr Hayes and reinforces the validity of BHP’s decision to dismiss;
k) The investigation was fair and afforded the appropriate level of procedural fairness.

Did Mr Hayes refuse a Lawful and reasonable direction?

[63] BHP submitted that Mr Hayes accepted he undertook induction at the mine and it was explained to him that any supervisor on the site could issue a reasonable direction, and he was aware of that at the time of the incident. 118

[64] BHP submitted that the direction that Mr Hayes unhook the fuel pump was reasonable for the following reasons: Mr Freney was a supervisor appointed by the Site Senior Executive at the Mine; BHP expected its employees to follow directions from any Supervisors, regardless of whether the supervisor is employed by BHP or a contractor; and employees are provided with information during site induction of the general requirement to follow instructions provided by supervisors. 119

[65] BHP further submitted that Mr Freney’s direction was lawful and reasonable because it did not conflict with Mr Hayes’ work instructions, and that Mr Hayes was provided with a special request not to refuel ST2. 120

[66] BHP also submitted that at no time during the investigation and disciplinary process (other than the termination meeting) did the Applicant indicate he was not aware that Mr Freney was a supervisor. BHP submitted that Mr Hayes’ witness statement drafted immediately after the incident referred to Mr Freney as a supervisor. 121

[67] Mr Hayes’ submission was that he did not unreasonably fail to follow the purported direction. 122 Mr Hayes submitted that the direction was not lawful or reasonable for reasons including: that he had not been advised that a Downer EDI supervisor such as Mr Freney had the authority to issue him a direction; that Mr Freney did not identify himself as someone with the authority to issue him a direction; that the direction conflicted with his own work instructions; that the direction was not put in unequivocal terms; and that he was not put on notice that there would be consequences if he did not follow the direction.123

[68] Mr Freney claimed he could give directions to workers employed by BHP because supervisors form part of the management team at the Mine and in the Maintenance Department all workers are required to work together, and there is no division between contractors and BHP employees as Mr Franklin seemed to suggest. 124

[69] The difficulty I have with Mr Freney’s evidence on this point is that the evidence indicates that Mr Freney and Mr Hayes did not know each other and had never had dealings with each other before the incident on the day. This does not sit easily with Mr Freney’s evidence that workers in the Maintenance Department are required to all work together and there is no division between contractors and BHP employees.

[70] Mr Freney’s own evidence was that he did not believe he issued a direction to Mr Hayes, 125 and in his written statement used the expression “we need…”126Mr Hayes’ evidence is clear he did not understand he had been issued a direction at that time.127

[71] The evidence does not support a conclusion that it was made clear to employees like Mr Hayes that he was required to follow a direction from a supervisor of a contracting employer that was not his employer. The issue is even more unclear when the evidence supports a finding that Mr Hayes was being asked to do something which contradicted a direction he had from his own supervisor.

[72] Mr Freney accepted that he did not know Mr Hayes at the time, 128 and could not recall seeing him or having any discussions with him prior to the incident.129 Mr Freney agreed with the proposition that Mr Hayes never gave him any indication that he knew Mr Freney was a supervisor. Mr Freney also agreed that he did not tell Mr Hayes that he was a supervisor.130 Mr Freney said he couldn’t say whether Mr Hayes knew he was a supervisor, but it “felt” as though he knew.131 Mr Freney did not identify himself to Mr Hayes as being a supervisor. Mr Dodd, the Manager of Maintenance at the Mine agreed it would be normal practice for a supervisor to do that if an employee is not doing what they are asked to do.132

[73] Mr Hayes said in his evidence he had seen Mr Freney before, was aware he worked for Downer, a contractor to BHP, however he did not recall having to deal with Mr Freney directly before 18 January 2017. Mr Hayes claimed he was not sure at that time what Mr Freney’s position was, although he knew he worked for Downer in the Workshop. Mr Hayes said he did not know that Mr Freney was considered by BHP to be a supervisor with authority to issue him a direction, or that Mr Freney had any supervisory role in relation to Mr Hayes work or the Ancillary Maintenance Department. 133

[74] Mr Hayes said in his response to the show cause letter 134 “Further, Mr Freney is not my supervisor.” He did not say specifically that he did not know that Mr Freney was “a” supervisor and BHP points to that as indicative of Mr Hayes knowing Mr Freney was a supervisor.

[75] BHP has raised the fact Mr Hayes did not claim he did not know Mr Freney was his supervisor until the termination meeting. The evidence to support a conclusion that Mr Hayes did know Mr Freney was a supervisor was the evidence of Mr Jorgensen contradicting Mr Hayes claim that Mr Jorgensen told him as much on the afternoon of 18 January 2017, and also Mr Hayes providing in his written statement at around 5:35pm that concluded with the following sentence; “I would like to use this statement as a formal complaint for the manner in which I was spoken to by the aforementioned supervisor, Mark.” Mr Hayes said the following in cross examination;

“PN 188

In that document I suggest to you that it is quite clear that you are fully aware that Mark Freney, the man that you had the altercation with was a supervisor? ---Two hours after the incident, yes. After I’d spoken with my supervisor and I asked him who Mark was.

PN 189

Okay? ---He then informed me that he was the Downer supervisor.

PN 190

So it is your position that including the fact that he was a supervisor in this document is because that was the information that was new to you, as of 5.35 that afternoon?---Well, it was new to me as of probably half past 3 – 4 o’clock when I spoke to Nat Jorgensen.”

[76] BHP submitted that when challenged under cross examination as to why Mr Hayes did not put in his complaint that he did not know Mr Freney was a supervisor he responded “I have no idea” and when it was suggested he had no explanation he said “no”. 135

[77] BHP sought and was granted leave to file a statement in response to Mr Hayes’ evidence concerning what he claimed Mr Jorgensen had told him given he had not raised this before. Mr Jorgensen gave evidence that he did not accept the conversation said to have occurred between himself and Mr Hayes in certain paragraphs of Mr Hayes’ statement. 136

[78] Mr Hayes’ evidence was to the effect that following the incident with Mr Freney he went to see Mr Jorgensen to explain the situation. Mr Jorgensen did not appear to take issue in his statement with Mr Hayes’ evidence that Mr Jorgensen had asked him if he had been told that ST2 was meant to have been left empty, or Mr Hayes’ evidence that he had replied “no, and why would they want it empty?”

[79] Mr Jorgensen took issue with Mr Hayes’ evidence about what Mr Hayes claims he said to Mr Jorgensen concerning the way Mr Freney spoke to him, and also Mr Hayes’ suggestion there were two conversations between himself and Mr Hayes about the issue. Mr Jorgensen said it was his recollection there was only one conversation which occurred prior to, but close to the end of shift. Mr Jorgensen also said that during the conversation Mr Hayes did not ask Mr Jorgensen who Mark (Freney) was or what position he held at the mine. Further he said at no time during this conversation did he tell Mr Hayes that Mr Freney was a supervisor. 137

[80] Mr Jorgensen said in his oral evidence he already knew that Mr Hayes had not been told about the direction concerning ST2. 138 His evidence was to the effect that he knew there had been an altercation between Mr Freney and Mr Hayes and he claims to have deducted from that Mr Hayes had not been told about the direction. It was submitted for Mr Hayes this was not a basis for Mr Jorgensen knowing that Mr Hayes had not been told about the direction and supports Mr Hayes claim that he and Mr Jorgensen had spoken twice that afternoon and not once as Mr Jorgensen claimed.

[81] Mr Hayes said when he was interviewed by Mr Lloyd Bull, Superintendent Prestrip Contracts at Saraji Mine on 19 January 2017 he informed Mr Bull that he did not know Mr Freney was a supervisor. 139 Mr Ty Franklin provided in his reply statement that he recalled Mr Hayes saying to Mr Bull that he did not know that Mr Freney was a supervisor at the time of the incident.140 Mr Franklin’s evidence was unchallenged. Mr Bull’s evidence was that Mr Hayes raised that Mr Freney was a supervisor, and he did not tell Mr Hayes that Mr Freney was a supervisor, and Mr Hayes volunteered that information.141BHP points to Mr Franklin’s notes of the meeting attached to his first statement142noting Mr Freney was a Downers supervisor as suggestive that Mr Hayes did not raise the issue of not knowing that.

[82] I have also noted from Mr Ferricks’ file note of the meeting conducted on 23 February 2017 143 that after Mr Ferricks had advised Mr Hayes the investigation had been concluded and read to him the findings Mr Ferricks asked Mr Hayes if he had any questions. Mr Hayes response at this time included;

“J.H I feel it is wrong as the witness was too far away to hear what was said.

R.F Well put that in your show cause if you feel you have to

J.H Just out of curiosity is he allowed to give me an instruction if he is not my supervisor.

R.F He is because he is appointed BMA supervisor on the mine record

J.H I still didn’t think he was”

[83] BHP submitted the inevitable conclusion as to Mr Hayes’ evidence is that when faced with the difficulty of explaining the inclusion of the word “supervisor” in his first account, when a critical limb of his complaint is that he did not know Mr Freney was a supervisor, that he simply made up his evidence.

[84] BHP this is critical to the credibility of Mr Hayes and amplifies his misconduct, and if Mr Hayes knew Mr Freney was a supervisor, then the entirety of his response to the reasons why he failed to cease to fuel ST2 must be rejected. That is he deliberately, aggressively and with intimidation, refused to comply with a legitimate and lawful request.

[85] It needs to be borne in mind that the interview Mr Bull conducted with Mr Hayes on 19 January 2017 did not proceed on the basis that Mr Hayes was being asked to answer allegations against himself at that time, it proceeded according to Mr Bull as an interview for the purpose of Mr Hayes compliant against Mr Freney.

[86] It is quite possible Mr Hayes became aware of the fact that Mr Freney was a Downer supervisor not in the manner as he claimed, by Mr Jorgensen telling him directly which Mr Jorgensen denies, but by Mr Jorgenson making a reference to Mr Freney as a Downer supervisor at some point during his conversation with Mr Hayes that afternoon without being said as a direct response to a question from Mr Hayes. It was submitted for Mr Hayes that would be consistent with much of BHP’s evidence referring to Mr Freney as a Downer EDI supervisor.

[87] On a separate but related issue, Mr Hayes also said at no time did BHP explain to him that he was required to follow directions from contractor supervisors from other areas of the Mine. 144 I accept the submission made for Mr Hayes that BHP’s reference to the coal mining safety legislation providing a basis to establish Mr Freney’s authority to give the alleged direction is not relevant in this case as the matter was not in regard to a safety issue.

[88] It is clear from the evidence Mr Hayes had a standing instruction to ensure that service trucks were left full of fuel prior to the end of shift 145 and he could be the subject of disciplinary action if he did not comply with that direction. It is clear that Mr Hayes had a direct supervisor Mr Jorgensen.146

[89] I observed Mr Hayes during his evidence and found his evidence was generally consistent throughout and he answered questions in a direct and forthright manner.

[90] My view having considered the evidence is that whilst it is possible Mr Hayes did know Mr Freney was a Downer supervisor I am not convinced on the evidence that it is probable he did at the time of the incident. The evidence of both Mr Hayes and Mr Freney is that neither knew the other. I am more inclined to believe he learned at some later point during the afternoon after the incident that Mr Freney was a supervisor and before he completed the statement that was requested by Mr Jorgensen. If I am wrong on that, even if Mr Hayes was aware Mr Freney was a Downer supervisor I am satisfied he was genuine in his evidence that at the relevant time he did not believe or understand that he was required to follow a direction from Mr Freney given he was not Mr Hayes’ supervisor.

[91] In any event, I am also not satisfied Mr Hayes was given a direction from Mr Freney. The evidence appears to be he was asking Mr Hayes to stop fuelling ST2 not directing him. It is clear Mr Hayes had a genuine belief that to do what Mr Freney was asking him to do would be contrary to a standing direction from his own supervisor to refuel ST2 at the end of shift. The failure to communicate to Mr Hayes that a different arrangement had been made for that afternoon should not be visited upon Mr Hayes, and was due to the failure of others to tell Mr Hayes.

[92] I am also at somewhat of a loss as to understand why Mr Freney did not make clear to Mr Hayes that he was a supervisor given they both gave evidence they did not know each other, or why Mr Freney did not make clear at any point that Mr Freney was issuing him a direction that Mr Freney at least believed Mr Hayes would be required to follow.

[93] Mr Hayes said in his initial statement. “I also believe that if the real issue of concern to the company was the “direction” that they could just have clarified any supervisory function Mr Freney might have had.” 147

[94] The evidence was the proportion of contractors engaged at the Mine had increased dramatically since Mr Hayes was inducted years earlier and instructed about being required to follow directions of supervisors other than his own. I am inclined think that the training Mr Hayes received back at the time of his induction could have been revisited and emphasised in terms of its application also applying to contractors given the significant changes to the makeup of the workforce and increased presence of contractors since the time of his commencement.

[95] Put most simply, Mr Hayes was faced with a circumstance where he was not advised of an arrangement made for the ST2 to be serviced by Downers at the end of his shift and he operated under a clear direction from his own BHP employed supervisor to fuel ST2 at the end of his shift. In that context he was approached in the crib hut by Mr Freney, a person he did not know who was employed by Downers and not his own employer, and asked to do something contrary to his standing instructions.

[96] I am not satisfied he was directed to do anything by Mr Hayes, and if I am wrong about that there is also at least a question about whether a direction if given in this particular set of circumstances before confirmation of a change to his existing direction from his own supervisor was reasonable.

Was the Investigation fair?

[97] BHP through Mr Bull, conducted an investigation and a report was produced and signed on about 20 February 2017. Mr Bull said on the morning after the incident he was approached by Mr Ryan Ferricks and asked to conduct an investigation. 148

[98] Mr Ferricks’ evidence was that the decision to ask Mr Bull to conduct the investigation was a decision made by Mr Ferricks and Mr Kidd following a discussion between them on the morning of 19 January. 149

[99] Mr Bull said he was provided with two witness statements from Mr Freney and Mr Ford. Mr Ford agreed Mr Freney had given him a form to make his statement about five or ten minutes after the incident, and completed it in Mr Freney’s office. 150 Mr Ford said when he completed the statement he gave it to Mr Freney.151

[100] Mr Bull said that morning at approximately 9:00am he attended a meeting with both Mr Freney and Mr Ford. Mr Bull said at the commencement of the meeting he asked Mr Freney to give him a brief run-down of the incident. Mr Ford confirmed Mr Freney was in the room with him when he went through the statement he drafted with Mr Bull. 152 He said he then asked Mr Freney to leave the room and he discussed Mr Ford’s statement with Mr Ford. Then Mr Ford left the room and Mr Freney returned and he went through Mr Freney’s statement with him.153 Mr Ford’s evidence was to the effect that Mr Bull did not really interview him and told him he could leave.154

[101] It was put to Mr Bull that Mr Freney had given evidence that he had been provided with a copy of Mr Ford’s statement and read it prior to his meeting with Mr Bull. Mr Bull said he was unaware of that. He agreed with the proposition that was a significant problem. 155 I am satisfied on the evidence that this did occur.

[102] Mr Bull said that on the morning of 19 January 2017 following his meeting with Mr Ford and Mr Freney, he received a copy of Mr Hayes’ witness statement from Mr Ferricks. Mr Bull said he noted that the statement indicated Mr Hayes would like to use his statement as a formal complaint against Mr Freney. Mr Bull said he determined that it was necessary to meet Mr Hayes so he could speak with him about the incident.

[103] A meeting was arranged with Mr Hayes at his home in Moranbah at 4:00pm that afternoon. Mr Bull claimed that Mr Hayes said to him words to the effect that included that “Mark”, a Downers supervisor who was working day shift, had come over to the service bay crib room to tell him that they needed ST2. Mr Bull said that Mr Hayes was unable to recall Mark’s surname. 156

[104] Mr Bull said he provided his draft notes for the investigation report to Ms Chantelle Mill, the Human Resource Business Partner for assistance in preparing the final version of the report. 157

[105] Mr Ferricks said that on 30 January 2017 he was contacted by Ms Mill who informed him to the effect that she had read the witness statements of Mr Freney and Mr Ford, and Mr Bull’s notes from his meetings with Mr Freney and Mr Ford. Mr Ferricks said that Ms Mills explained that she was of the view that the statements of Mr Freney and Mr Ford did not go into enough detail regarding the incident. Mr Ferricks said Ms Mill suggested that Mr Ferricks ask Mr Ford and Mr Freney to provide an additional witness statement regarding the incident and he agreed. Mr Ferricks said he then arranged for Mr Kidd to arrange for Mr Freney and Mr Ford to provide an additional witness statement regarding the incident. 158

[106] Mr Bull said after providing his report to Ms Mill, Mr Ferricks provided him with an additional witness statement from Mr Ford and Mr Freney. Mr Bull said these statements provided more detail about what was said by both Mr Freney and Mr Hayes. 159

[107] Mr Bull said on around 16 February 2017 Ms Mill provided him with a copy of an investigation report, which he reviewed and he did not change. He said he signed it on 20 February 2017. 160

[108] Mr Bull said he formed the view Mr Freney’s version of events should be preferred over Mr Hayes’ version in the circumstances as Mr Ford was able to corroborate a significant amount of the information provided by Mr Freney. Mr Bull said he also formed this view because Mr Freney’s allegation that Mr Hayes “implied” that he was an incompetent supervisor, and that Downer EDI employees generally were not capable of arranging maintenance, was supported by the manner in which Mr Hayes spoke about Downer EDI during their meeting. 161 It was pointed out for Mr Hayes that Mr Bull’s notes of the meeting on 19 January 2017 do not include any reference to these alleged comments.162

[109] BHP issued Mr Hayes a show cause notice on 22 February 2017. 163

[110] Mr Hayes asserted that the investigation report made no real attempt to ascertain what actually occurred nor did it address the apparent conflicts between the evidence of those involved and present during the incident.

[111] Further Mr Hayes asserted that BHP did not conduct a fair and reasonable investigation because it did not independently interview Mr Ford, and he was only spoken to in the presence of Mr Freney. Mr Ford appeared to confirm Mr Freney was present in his oral evidence. 164

[112] It was further put for Mr Hayes that further witness statements were provided by Mr Freney and Mr Ford significantly after the event and conflicted with their initial statements with no consistent explanation being provided for their purpose. Mr Ford said he did not recall being directed or asked for a second statement. 165

[113] It is clear from the evidence that Mr Bull who was responsible for the investigation did not know that the additional statements were being obtained. He said as follows during his evidence; 166

“PN 1648

“Given you were involved in the investigation or asked to do the investigation because of the issue of impartiality, didn’t you have a concern about Mr Ferricks going and doing that?---I wasn’t aware that we have done it until after I had the copies of the statements.

PN 1649

It’s fair to say you were in charge of the investigation. You were the primary investigator?---That’s right.

PN 1650

You didn’t know that Mr Ferricks had gone off and arranged to get other statements?---no.

PN 1651

Did you compare the first statements that Mr Freney and Mr Ford provided to their second statements?---I wouldn’t say in any great detail, no.”

[114] Mr Bull accepted that the second set of statements were provided after he had sent his draft report to Ms Mill, and that he did not compare the first set of statements to the second set of statements and that he did not recall making any suggestions to alter the final report in relation to the additional statements. 167 Mr Bull conceded there were inconsistencies between the two sets of statements.168 BHP submitted this submission was in the context of earlier cross examination concerning a specific sentence and should be understood as such and not as a general statement. Mr Bull accepted that he did not know if there was a policy on conducting an investigation of this type.169

[115] Mr Bull accepted in his oral evidence that a series of dot points at clause 4.1 of the Investigation Report identified as Agreed Facts were not agreed facts at all. This included that Mr Hayes followed Mr Freney from the crib room to the service bay and to the Maintenance Superintendent offices while yelling at him. Other purportedly agreed facts were Mr Hayes refusing to follow a lawful directive, Mr Hayes swearing at Mr Freney and Mr Hayes standing within 50cm of Mr Freney’s face while at the crib room yelling, or that Mr Hayes acted in a way that is not consistent with the BHP Billiton Charter Values. Mr Bull accepted that they were in fact not agreed. Mr Bull then conceded that HR had written the final draft of the report. 170

[116] Mr Bull also accepted he didn’t conduct a thorough review of the differences between Mr Freney’s first and second statement, and that quotes appearing in the summary of findings came from Mr Freney’s second statement. He also accepted based on his experience investigating incidents with the police that people’s memory tends to fade over time. 171

[117] The conclusion at point 7 of the investigation report included the following;

“While the severity of inappropriate language used by Mr Hayes toward Mr Freney cannot be explicitly confirmed it is acknowledged that the encounter has had a significant effect on both Mr Freney and Mr Ford, with both statements indicating sincere concern for the well-being of themselves and their families a result of the altercation.”

[118] Mr Bull said he did not remember Mr Ford saying anything to him about his family. Mr Bull indicated that he did not have a conversation with Mr Freney about his family, but about returning to work. Mr Bull said didn’t have any conversations in regard to any threats against families. 172

[119] Mr Bull said in his evidence that during his interview with Mr Freney the day after the incident Mr Freney broke down in tears as he described the incident. Mr Bull said he provided Mr Freney with some time to compose himself before continuing the meeting. 173 Mr Bull provided some further elaboration in his oral evidence on Mr Freney’s demeanour that day.174 Mr Freney appeared to me to be somewhat fragile in the course of giving his evidence, and sensitive about historical events involving the Union which he had previously been involved in. Whilst human reaction to particular events can vary greatly, I find it difficult to reconcile the strength of Mr Freney’s apparent reaction to the exchange with the evidence concerning the events themselves. I return to this issue later in this decision.

[120] I am under the impression that Mr Bull’s conclusions were influenced by his subjective views reached concerning Mr Hayes attitude to contractors generally, and in response to what he observed as Mr Freney’s reaction to the incident, and were not sufficiently based on an objective assessment of the evidence he had before him concerning the incident itself. Representatives of BHP went back to Mr Freney and Mr Ford to collect further statements but did not do the same with Mr Hayes. This is in circumstances where Mr Bull who collected Mr Hayes’ statement had confirmed that his interview with Mr Hayes was not in connection with an investigation into Mr Hayes conduct, but in connection with his complaint about Mr Freney’s conduct.

[121] Mr Bull said that he formed the view in the course of the meeting with Mr Hayes on 19 January 2017 that Mr Hayes thought very poorly of contractors who work at the Mine including using expletives about them. 175 However Mr Bull agreed that when he said Mr Hayes had a poor view of contractors that the discussion was really about the work that was being performed by Downer as opposed to them being contractors. He also agreed that Mr Hayes was somewhat frustrated with the ability to get trucks, or the scheduling of communication. Mr Bull agreed that there was nothing Mr Hayes said to indicate he actually had an issue because they were contractors, and he was merely referring to the group doing the work.176 Mr Bull later in his evidence appeared to resile to some extent on this point saying he thought it was a combination of the two.177 He also referred to the strength of the language Mr Hayes used.178

[122] Mr Bull gave some evidence that during a meeting with Mr Dodd he formed the view that Mr Hayes face was 500mm from Mr Freney’s face while he was yelling at Mr Freney. He said Mr Dodd and himself used a ruler to measure the distance between their faces and determined that it was a very small distance. 179 Mr Bull accepted that he did not put this to Mr Hayes, Mr Freney or Mr Ford.180

[123] When it was put to Mr Bull during cross examination that the interview with Mr Hayes wasn’t in relation to the allegations made by Mr Freney he agreed it wasn’t. 181 He said that the meeting was in regard to the conduct of Mr Freney so he did not put any allegations to Mr Hayes at all in regard to what was said by Mr Freney or Mr Ford.182 Mr Bull said there was no attempt to create a re-enactment of the incident.183

[124] BHP submitted the complaint on behalf of Mr Hayes concerning the manner with which the investigation was conducted is without merit, or in the alternative, was not conducted in a way so as to have impaired the evidence in any way or denied Mr Hayes procedural fairness. I do not agree. The deficiencies in the manner in which the investigation proceeded as identified by the evidence denied Mr Hayes procedural fairness and undermine the credibility of the findings.

[125] Mr Freney read Mr Ford’s statement before he was interviewed by Mr Bull, and they were in the room together during the interview. Mr Bull accepted that this if it were a proper investigation then this should not have happened. 184 Further statements were obtained from Mr Freney and Mr Ford without the knowledge of the investigator Mr Bull, and the investigation report was drafted for Mr Bull and clearly described critical facts as agreed when they were in dispute.

[126] Further there was no appropriate attempt to reconcile the differences between the competing versions of events. I agree with the submission made for Mr Hayes that in the circumstances an effort to re-enact the alleged physical elements of incident should have occurred given the inconsistencies and the serious consequences being contemplated for Mr Hayes. As was pointed out in submissions there is a difficulty with Mr Freney’s evidence that Mr Hayes was blocking him from accessing the fuel bowser whilst at the same time saying he did not intend to access the fuel bowser.  185 I have concluded that the investigation was not fair.

Show Cause Process

[127] Mr Hayes was provided with a show cause letter at a meeting on 23 February 2017 signed by Mr Ryan Ferricks. The letter was dated 22 February 2017. 186 The letter advised that the investigation was concluded and listed the findings of the investigation. The findings included;

“…………………………..

•  You were tasked with operating ST2, and were instructed to drive to the service bay wash pad at 2.00pm, where ST2 was to be washed by Downer EDI Mining.

……………………………….

•  Mr Freney, Supervisor Maintenance Mobile met you at the doorway of the service bay crib room, and asked why you had not delivered ST2 to the wash pad as per instruction and to unhook the fuel line so ST2 could return to the wash bay and on to scheduled maintenance.

•  When approached by Mark Freney you spoke to him in an aggressive and disrespectful manner, swearing repeatedly at Mark, waving your hands and standing in a close proximity to Mark’s face while yelling at him.

•  You called Mark Freney a ‘cunt’ and implied that Mark was an incompetent supervisor who was not aware of the happenings within the maintenance department, or the schedule of equipment due for servicing.

•  You failed to follow a lawful and reasonable direction from the Supervisor Mark Freney, when he instructed you on a number of occasions to unhook the fuel line from ST2.

•  When standing near ST2 at the service bay you used your body to block Mark Freney from attempting to unhook the fuel line from ST2.

•  You followed Mark Freney and a fellow mine employee to the Maintenance Superintendent offices, while yelling abuse directed at Mark.”

[128] Mr Hayes responded to the show cause letter on 27 February 2017. 187 The response set out the background to what Mr Hayes did that day. His response indicates contrary to the show cause letter he did not receive an instruction to drive to the service wash bay pad at 2pm where Downer staff would wash ST2. Mr Hayes response included that Mr McKenzie told Mr Hayes he had forgotten to tell Mr Hayes that ST2 was supposed to be left empty. Mr Hayes version of what occurred when he encountered Mr Freney was markedly different to the findings in the show cause letter.

[129] Mr Hayes said Mr Freney spoke to him in an aggressive and disrespectful way, and he admitted swearing but said his swearing was not directed at Mr Freney personally but was in the context of the matter itself. He said Mr Freney swore repeatedly.

[130] Mr Hayes also said in his show cause response that he did not believe he had failed to follow a lawful and reasonable instruction because it was not reasonable for Mr Freney to direct him to go against the proper procedures by unhooking the truck while it was being refuelled, and Mr Freney was not his supervisor. Mr Hayes denied using the word cunt in reference to Mr Freney, and denied using his body to block Mr Freney.

[131] Mr Hayes referred to his good disciplinary record, and personal circumstances including the financial hardship he and his family would experience if terminated. He said the appropriate sanction in the circumstances is a written warning, and he was deeply remorseful about the matter, and did not hold any hard feelings toward Mr Freney and would not allow the incident to interfere with their ongoing relationship.

[132] Mr Dodd said in his evidence that a few days after receiving the show cause response he had a meeting with Mr Ferricks and Ms Mill to discuss the show cause response. Mr Dodd said it was noted some points raised by Mr Hayes had not been addressed in the investigation report. Mr Dodd said it was determined for Mr Ferricks to speak with Mr Freney again and he provided with his statement a copy of an email Mr Ferricks sent him containing notes Mr Ferricks said he had taken from a meeting with Mr Freney. 188 BHP terminated Mr Hayes on 15 March 2017 based on the findings of the investigation.

How serious was the conduct itself?

[133] Mr Hayes’ engaged in misconduct in the course of his exchange with Mr Freney. However Mr Hayes at no stage threatened to attack or cause harm to Mr Freney or Mr Ford, and the language used was not of a personal attack in nature that would cause a reasonable person to believe that a physical attack might occur. Mr Freney also spoke with a raised voice. Mr Ford, the only witness to the exchange between Mr Freney and Mr Hayes, said the following during cross examination;

“PN 2652

To your recollection did Mr Hayes at any time use the word Downer?---Not that I recall, no.

PN 2653

From your observations or did you see or hear Mr Hayes tell Mr Freney that he couldn’t organise shit?---I didn’t hear that, no.

PN 2654

Did Mr Freney after the incident at any stage tell you that that was what Mr Hayes said?---No, he didn’t.

…………….

PN 2656

Firstly, did you have some discussion with Mr Freney after the incident about what had occurred?---Later on the shift yes, we did.

PN 2657

Did he say anything to the effect that Mr Hayes had criticised his organisational skills or supervisory skills?---Not to that effect, no. Just more so concerned the way he spoke to and just generally shocked, I suppose.

PN 2658

Mr Hayes goes onto say that the exchange was in the nature of an argument but at no stage swore at him and he’s referring to Mr Freney there. So he says he didn’t swear at him personally and didn’t physically intimidate him in any way. Do you disagree with that?---I do disagree.

PN 2659

So I’ll just break that down. Mr Hayes says he didn’t swear at Mr Freney but rather used swear words in the context of the conversation. Do you agree with that or disagree with it? ---I agree with it – from what I heard and what’s in my statement in regards to this swearing, that’s probably correct from what I heard.”

[134] BHP submitted that Mr Freney felt that Mr Hayes behaviour was directed at him because he was a contractor and not employed by BHP, 189 and he thought on more than one occasion that he would be physically assaulted.190 Mr Freney said following the incident he was shaken up and distressed, could not concentrate and he thought no worker, regardless of their position, ought to be treated that way. Mr Freney decided to make a complaint to Mr Kidd.

[135] Mr Freney said he was concerned about the repercussions from Mr Hayes or other individuals on his shift after making the complaint, and was unable to sleep at night. 191 After the incident Mr Freney said he did not feel comfortable returning to work. He said he was concerned for his wellbeing and when challenged explained that the basis of that was from personal experience. He said he lived in Moranbah for 23 years in the coal industry and he went through the 2000 strike and he saw individuals victimised in that exact scenario. He said history told him it could happen again.192

[136] I accept the submission of Mr Hayes that the references he made to contractors in the course of the exchange with Mr Freney were made in the context of the relevant work areas and associated responsibilities. As set out earlier, Mr Bull agreed that when he said Mr Hayes had a poor view of contractors that the discussion was really about the work that was being performed by Downer as opposed to them being contractors. He also agreed that Mr Hayes was somewhat frustrated with the ability to get trucks or the scheduling of communication. Mr Bull agreed that there was nothing Mr Hayes said to indicate he actually had an issue because they were contractors, and he was merely referring to the group doing the work. 193

[137] Mr Hayes accepted that the exchange was inappropriate and should not have occurred, however it does not appear from the evidence that the nature of the exchange was sufficient to terminate his employment. I accept from the evidence that the strong language used by Mr Hayes while clearly inappropriate was not directed at Mr Freney personally, and was language that in all likelihood would not be uncommon at the Mine.

[138] I am left with the impression from the evidence that the view BHP arrived at concerning Mr Hayes attitude toward contractors appeared to become convoluted with a separate issue concerning BHP’s wider concerns about workplace culture and the nature of relationships between directly employed workers, and employees of contractors generally.

[139] Mr Hayes gave evidence that he did not have a grudge against Downers, 194 or set against contractors. The evidence does not support a finding Mr Hayes held such a grudge. It was never put to him as part of the investigation. I do not accept the evidence was sufficient to establish Mr Hayes had an issue with contractors, the evidence suggests that Mr Hayes references in the exchange were to the group responsible for performing the work. In any event it was not a matter that was the subject of a finding in the investigation.

Valid Reason

[140] I have already concluded for reasons set out above that Mr Hayes did not fail to follow a lawful and reasonable direction. I have also concluded the investigation was flawed. I am however satisfied that Mr Hayes anger directed at Mr Freney on the afternoon on 18 January 2017 was misconduct and inconsistent with the BHP Billiton Charter Values and Code of Conduct.

[141] It is true Mr Hayes lost his composure and an unpleasant verbal exchange occurred between Mr Hayes and Mr Freney. I reject that the evidence could support a finding that the verbal exchange may have escalated to a physical level. The evidence is inconclusive that Mr Hayes entered Mr Freney’s personal space. It appears there faces were never closer than half a metre when standing at the crib room door. I am not satisfied from the evidence Mr Hayes attempted to physically block Mr Freney from the fuel bowser. Mr Freney’s evidence was he did not intend to approach the bowser and the two men appear from the evidence to have been at least 4 or 5 metres apart at this time. On that basis the evidence supports a conclusion that exchange was not as serious as BHP had concluded from its investigation which it relied upon to terminate Mr Hayes.

[142] Also, and importantly the evidence revels there was a context to what happened which BHP did not give appropriate weight in deciding it had a valid reason to dismiss Mr Hayes. A breakdown in communication had occurred through no fault of Mr Hayes. He was not told that what he was supposed to do with ST2 on the afternoon of 18 January 2017 was something different to his standing direction. Effectively the right arm did not know what the left arm was doing.

[143] BHP have sought to characterise the event in large part as a matter about Mr Hayes having fundamental issues with contractors per se, and that his conduct toward Mr Freney was so aggressive, and intimidating it warranted dismissal. I do not accept that characterisation. There is no evidence to support that Mr Hayes had a fundamental issue with contractors beyond the disputed verbal exchange itself that occurred on one occasion, on one day, and Mr Bull’s subjective opinion following an interview with Mr Hayes the next day.

[144] Mr Hayes had been employed for many years with no such issue ever arising previously. The genesis of the dispute was a breakdown in communication between a work area that happened to be outsourced and Mr Hayes area that was not.

[145] Mr Hayes’ anger directed at Mr Freney, while undoubtedly inappropriate and warranting sanction, was not borne out of antipathy toward Mr Freney because he was a contractor, it was because Mr Hayes had not been told what he was supposed to do with ST2 that afternoon, and on the basis of what he was learning for the first time in the course of the exchange with Mr Freney, he believed both ST1 and ST2 may both be unavailable to the next shift impacting on the productivity of the Mine.

[146] In Mr Freney’s own version of the exchange he attributed the following statement to Mr Hayes; “Who’s going to wear the fucking down time? Are you going to wear the fucking down time when there are no trucks or diggers being fuelled?” Even on Mr Freney’s version it is clear the heart of the issue for Mr Hayes was not about his dislike of contractors, it was about ST2 being taken out of service when ST1 was also out of service.

[147] I do not doubt Mr Freney’s evidence concerning his emotional response to the exchange with Mr Hayes. However I am also inclined to the view that the strength of his response was greater than what would ordinarily be expected given the evidence concerning the incident itself. I accept that human beings are complex and some are more sensitive to certain circumstances than others. It was also my impression based on some of Mr Freney’s evidence that he bears the scars of some historical industrial disputes that may have heightened his reaction to this particular incident and what may have flowed from it. However those historical matters have nothing to do with Mr Hayes.

[148] There is no basis in the evidence to suggest Mr Hayes represents any kind of ongoing threat to Mr Freney, or his family as appeared to be suggested. This was a one off incident. I am also not satisfied on the evidence objectively viewed that there is a proper basis to believe Mr Hayes intended to escalate the exchange into a physical confrontation, and suggestions of that are unsupported subjective opinion. I am also satisfied that the strong language used by Mr Hayes was not intended to be directed personally at Mr Freney.

[149] Viewing Mr Hayes during his evidence he did not strike me as a particularly large or imposing in appearance. He is certainly much younger than Mr Freney. In all of the circumstances I have concluded that this long serving employee with a good employment record should not have lost his employment over this one off incident. He engaged in misconduct, and showed remorse and contrition afterwards. He should have been warned about losing his temper on the day. I have concluded in all of the circumstances BHP did not have a valid reason for dismissal.

Notification

[150] Mr Hayes was notified of the reason for his dismissal at the meeting which occurred on 20 March 2017 and in the termination letter provided to him.

Opportunity to Respond

[151] The reasons for dismissal were not in the termination letter but in the show cause letter. Mr Dodd indicated in his cross examination reasons for termination other than those in the show cause letter were considered. In submissions Mr Hayes relies on the following evidence from Mr Dodd;

“PN 2269

Do you accept that, even on what the companies say occurred, this was a one off incident? There weren’t other examples of this type of behaviour from Mr Hayes, were there? No. This is an event on a day, which there were – it went on for a period of time, and then I suppose through the investigation there were more concerns raised around these contractors. But there was only one event on one day, but the investigation did go into account that James didn’t like contractors and didn’t speak nicely about them.

PN 2270

Would it be fair to say one of your primary concerns was that Mr Hayes did not like contractors and had something against them? Not only that – that was a primary concern, yes.

PN 2271

Was that a significant factor in your decision-making in terms of terminating Mr Hayes’s employment?---Not a significant factor, no, but it was a factor involved in it.

PN 2272

That wasn’t put to Mr Hayes was it?---No, it wasn’t put to Mr Hayes, no.

PN 2273

So he didn’t get an opportunity to respond to those concerns, did he?---He had ample opportunity through his witness statements, through his show cause, but that specific question was not put to him, no.

[152] It was submitted for Mr Hayes that BHP predetermined that dismissal should result because BHP’s representatives held the view that there was an underlying attack on contractors and that that would have a detrimental impact at the Mine, however neither of those concerns were put to Mr Hayes. On that basis it is asserted that Mr Hayes was not informed of the reasons for termination.

[153] I am satisfied on the evidence that the view BHP arrived at concerning Mr Hayes attitude toward contractors was a factor in the decision making to terminate Mr Hayes and that matter was not to put him.

Support Person

[154] There was no unreasonable refusal of BHP to allow Mr Hayes a support person in relation to any discussions relating to his dismissal.

Unsatisfactory Performance

[155] Mr Hayes was not dismissed for unsatisfactory performance.

Size of Employer’s Enterprise and Human Resources Expertise

[156] BHP is a very large employer with dedicated human resource management specialists with the capacity to follow proper process when conducting disciplinary matters. The procedural failings in the investigation process given the resources of BHP tell against a finding the dismissal was fair. Further it was apparent from the evidence of Mr Dodd that he was not provided all relevant information concerning Mr Hayes employment history before the decision was taken to terminate him. 195 The process followed including by the Human Resource Department was flawed.

Other relevant factors

[157] It was put for Mr Hayes that, at worst, his conduct could be viewed as inappropriate but only modest in terms of characterising any breach of procedure. Mr Hayes has no history of relevant disciplinary action. Mr Hayes cooperated with the investigation. I have concluded that the decision to terminate was excessive given the nature of the conduct. BHP could have done more to clarify to Mr Hayes his relationship with supervisors engaged with contractors given the increasing use of contract labour. Mr Hayes expressed remorse, and committed to complying with BHP’s procedures and had a history of positive performance. Mr Hayes as a reasonably long period of service with BHP.

[158] Mr Hayes has secured work on a reduced income. It is argued for Mr Hayes the termination is harsh because of Mr Hayes service and the impact on him, and the disproportionate penalty compared to the alleged conduct.

[159] BHP submitted that the submission on behalf of Mr Hayes that Mr Dodd was not provided with the relevant information by BHP’s Human Resources personnel is erroneous because the Mr Hayes was not dismissed for poor performance but for misconduct, and in these circumstances that information is not relevant.

[160] BHP submitted it is incorrect to say BHP failed to address or advise employees of an increasing use of contract labour and took no steps to manage issues that might arise from that. BHP pointed to the evidence of Mr Bull regarding his role as ‘Culture Coach’ at the Mine and steps BHP was taking to address and positively develop the culture of the mine, particularly in relation to contractors. 196

[161] I am satisfied that the evidence concerning other relevant factors weigh in favour of Mr Hayes.

Conclusion harsh, unjust or unreasonable

[162] I have taken into account all of the matters that I am required to in accordance with s.387. After weighing all the evidence and for reasons set out above, I have concluded that Mr Hayes’ dismissal was harsh, unjust and unreasonable and therefore unfair.

REMEDY

[163] Mr Hayes seeks orders under section 391 of that Act that;

a) BHP reinstate him by reappointing him to the position in which he was employed immediately before dismissal;
b) BHP pay am amount for the remuneration lost by him because of the dismissal; and ‘
c) An order to maintain the continuity of employment.

[164] Reinstatement is the primary remedy pursuant to section 390(3).

[165] BHP submitted if the dismissal was unfair the remedy should be confined to one of compensation. BHP relies on the evidence of Mr Dodd that due to the conduct of Mr Hayes, BHP has lost trust in him and cannot be confident that if Mr Hayes were permitted to return to the Mine, a similar incident would not occur again in the future. Mr Dodd’s evidence was that he did not accept that Mr Hayes did not have an issue with contractors. 197 Mr Dodd said the following in his evidence;198

“In coming to a decision I also considered the fact that if Mr Hayes was to return to the Mine he would have to work with contractors, including Mr Freney and Mr Ford. I took into account the impact my decision would have not only on Mr Hayes but on other employees and contractors at the mine.”

[166] Mr Dodd’s evidence was to the effect that reinstating Mr Hayes would send a message that condoned his behaviour. 199 BHP argued the circumstances surrounding the dismissal are such that they preclude a continuing bond of sufficient trust to make the relationship viable and productive. BHP submitted in the coal mining environment that trust and confidence command special significance.

[167] In closing submissions for Mr Hayes, reliance is placed on the following passage from the Federal Court decision of Bromberg J in Quinn v Overland 200

“[99] Of particular significance to the continuing relevance of the original rationale, is that throughout the length and breadth of Australia, Parliaments have enacted unfair dismissal regimes which provide for the reinstatement of a dismissed employee as an available remedy. These regimes have now been in place for over a generation. Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential: Downe at [462]”

[168] Submissions for Mr Hayes also made reference to the commonly quoted passage from the Full Court of the Industrial Relations Court decision in Perkins v Grace Worldwide (Aust) Pty Ltd. 201

“…We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such a loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between the employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.”

[169] It is argued for Mr Hayes that there is no destruction of the relationship of trust and confidence between the parties, and BHP is a large enough employer organisation that the relationships are not particularly personal and the employment relationship can withstand some friction and doubts if they arise. It was put that there is no reason to think there would not be sufficient trust to make the relationship viable and productive, and any difficulty, embarrassment or inconvenience would not be such that the problems could not be overcome.

[170] It is submitted that Mr Hayes wants to be reinstated. I have not been satisfied on the evidence that he should not be. I have reached this conclusion because I reject the premise of BHP’s submission that it cannot be confident the conduct will not occur again. I am satisfied from the evidence that Mr Hayes misconduct was a one off incident in a specific context, and Mr Hayes did not have prior history of conduct of this nature and is highly unlikely to repeat it. I have rejected the submission that Mr Hayes has some fundamental issue with contractors and therefore that issue falls away as a basis not to reinstate. I am satisfied thata sufficient level of co-operation for a proper working relationship to resume can occur, and Mr Hayes should not be denied the primary remedy. Therefore I intend to order that Mr Hayes be reinstated to the position in which he was employed immediately before dismissal with continuity of service.

[171] I consider it appropriate to make orders pursuant to s.391(1)(a) and s.391(2)(a) for reinstatement and continuity of employment.

[172] I have taken into account all of the circumstances of the case and also consider it appropriate to make an order pursuant to s.391(3). In determining the appropriate amount I have taken into account the matters required by s.391(4).

[173] I have had regard to the information provided in Mr Hayes submissions. Mr Hayes was dismissed on 15 March 2017. According to his submissions his income at the time of dismissal was $3,397.59 per week before tax.

[174] He gained other employment and earned $28,897.05 from 14 June 2017 up until he was informed on approximately 18 September 2017 that he would no longer be permitted to work at the Goonyella Riverside Mine. According to the closing submissions for Mr Hayes dated 12 October 2017 $28,897.05 is the amount he has earned as a pre-tax amount and he will likely not receive any income between that time and the making of an order.

[175] The orders I intend to issue will require that Mr Hayes be reinstated as of today’s date. The period from 15 March 2017 to 22 December 2017 which will be the date of the order equates to approximately 40 weeks. $3,397.59 multiplied by 40 equals $135,903.60.

[176] The amount of $28,897.05 needs to deducted along with the four weeks’ pay in lieu of notice which equals $13,509.36. These two amounts combined equal $42,406.41 and need to be deducted from the estimated income lost resulting in an amount of $93,497.19.

[177] I have also concluded it is appropriate that there be a deduction from the amount ordered pursuant to s.391(3) because of Mr Hayes misconduct on 18 January 2017. I have decided there should be a deduction of a further 50% because of that misconduct. I am aware that this is a significant reduction however it is important having found that Mr Hayes’ conduct on 18 January 2017 constituted misconduct, that this decision in his favour should not be interpreted as in anyway condoning his inappropriate behaviour on that day. 50% of $93,497.19 equals $46,748.60 reducing the amount to $46,748.60.

[178] On that basis I intend to order pursuant to s.391(3) that BHP pay to Mr Hayes for remuneration likely to have been lost because of the dismissal, an amount of $46,748.60 gross taxed according to law.

COMMISSIONER

Appearances:

Mr R Anderson of the Construction, Forestry, Mining and Energy Union for the Applicant

Mr A C Braithwaite of Counsel instructed by Ashurst for the Respondent

Hearing details:

2017,

Mackay:

12, 13 and

Brisbane:

14 September

26 October

 1   Form F2 application and Form F3 Employer’s response.

 2   Form F3 Employer’s response and Statement of Mark Freney dated 19 August 2017.

 3   Form F3 Employer’s response.

 4   Form F2 application and Statement of James Hayes dated 9 July 2017.

 5   Statement of James Hayes dated 9 July 2017.

 6   Applicant’s Outline of Submissions – paragraphs 7, 27 and 29.

 7   Statement of Mark Freney dated 19 August 2017 at [18]-[20] and Respondent’s Outline of Submissions – paragraph 9.

 8   Ibid.

 9 Statement of James Hayes dated 9 July 2017 at [32].

 10   Statement of James Hayes dated 9 July 2017 at [35] and Respondent’s Outline of Submissions – paragraph 10.

 11   Ibid.

 12   Statement of James Hayes dated 9 July 2017 at [37] and [39].

 13   Statement of James Hayes dated 9 July 2017 at [40] and [41].

 14 Statement of Mark Freney dated 19 August 2017 at [21].

 15   Ibid.

 16 Statement of James Hayes dated 9 July 2017 at [36].

 17   Statement of Steven Ford dated 14 September 2017 at [12] and [14].

 18   Ibid.

 19 Statement of Steven Ford dated 14 September 2017 at [14].

 20   Statement of Steven Ford dated 14 September 2017 at [15] and Statement of Mark Freney dated 19 August 2017 at [22].

 21 Statement of James Hayes dated 9 July 2017 at [45].

 22   Statement of Mark Freney dated 19 August 2017 at [22]-[24].

 23 Statement of Mark Freney dated 19 August 2017 at [24].

 24   Statement of Mark Freney dated 19 August 2017 at [24] and Undated statement of Steven Ford at [16].

 25 Statement of Mark Freney dated 19 August 2017 at [24].

 26 Statement of James Hayes dated 9 July 2017 at [47].

 27   Ibid.

 28 Statement of James Hayes dated 9 July 2017 at [48].

 29   Ibid.

 30   Statement of Steven Ford dated 14 September 2017 at [16]-[18].

 31   Transcript PN 2541.

 32   Transcript PN 2544.

 33   Transcript PN 2549.

 34 Statement of Steven Ford dated 14 September 2017 at [16].

 35 Statement of Mark Freney dated 19 August 2017 at [24].

 36 Statement of James Hayes dated 9 July 2017 at [49].

 37   Transcript PN 2565.

 38 Statement of James Hayes dated 9 July 2017 at [51].

 39   Transcript at 722-724.

 40   Transcript at PN 2539.

 41 Statement of James Hayes dated 9 July 2017 at [52].

 42 Statement of James Hayes dated 9 July 2017 at [54].

 43   Ibid.

 44 Statement of Steven Ford dated 14 September 2017 at [17].

 45 Statement of Mark Freney dated 19 August 2017 at [24].

 46   Statement of Mark Freney dated 19 August 2017 at [25] and statement of Steven Ford dated 14 September 2017 at [17].

 47   Transcript PN 2560.

 48 Statement of Mark Freney dated 19 August 2017 at [28].

 49 Transcript at PN 417 and Statement of James Hayes dated 9 July 2017 at [59].

 50 Statement of James Hayes dated 9 July 2017 at [59].

 51 Statement of Mark Freney dated 19 August 2017 at [27].

 52 Statement of Steven Ford dated 14 September 2017 at [18].

 53 Statement of James Hayes dated 9 July 2017 at [71].

 54   Ibid.

 55 Statement of James Hayes dated 9 July 2017 at [58].

 56 Statement of James Hayes dated 9 July 2017 at [63].

 57   Transcript at PN 421 and 423.

 58 Statement of Mark Freney dated 19 August 2017 at [24].

 59   Statement of Steven Ford dated 14 September 2017 at [17]-[18].

 60   Ibid.

 61   Ibid.

 62 Statement of Mark Freney dated 19 August 2017 at [24].

 63   Transcript at PN 425.

 64   Transcript at PN 428.

 65 Statement of Mark Freney dated 19 August 2017 at [24].

 66   Transcript PN 2617.

 67 Statement of Steven Ford dated 14 September 2017 at [19].

 68 Statement of Mark Freney dated 19 August 2017 at [24].

 69 Statement of James Hayes dated 9 July 2017 at [56].

 70 Statement of James Hayes dated 9 July 2017 at [57].

 71   Statement of Mark Freney dated 19 August 2017 at [24] and Statement of James Hayes dated 9 July 2017 at [57].

 72   Statement of Mark Freney dated 19 August 2017 at [24], Statement of James Hayes dated 9 July 2017 at [65] and Statement of Steven Ford dated 14 September 2017 at [19].

 73 Statement of James Hayes dated 9 July 2017 at [60].

 74   Statement of James Hayes dated 9 July 2017 at [35] and [60].

 75 Statement of James Hayes dated 9 July 2017 at [61].

 76 Statement of James Hayes dated 9 July 2017 at [64].

 77 Statement of James Hayes dated 9 July 2017 at [67].

 78   Transcript PN 2697.

 79   Transcript PN 2692.

 80 Statement of Mark Freney dated 19 August 2017 at [24].

 81   Transcript PN 2635-2637.

 82   Transcript PN 743-744.

 83   Transcript PN 805.

 84   Transcript PN 939.

 85   Statement of Mark Freney dated 19 August 2017 at [24] and Statement of Steven Ford dated 14 September 2017 at [20].

 86   Statement of James Hayes dated 9 July 2017 at [76] and Statement of Steven Ford dated 14 September 2017 at [21].

 87 Statement of Mark Freney dated 19 August 2017 at [24].

 88 Statement of James Hayes dated 9 July 2017 at [77].

 89 Statement of Mark Freney dated 19 August 2017 at [24].

 90   Ibid.

 91   Statement of Mark Freney dated 19 August 2017 at [24] and Statement of James Hayes dated 9 July 2017 at [78].

 92   Ibid.

 93   Form F3 Employer’s response.

 94   Form F3 Employer’s response and Respondent’s Outline of Submissions – paragraph 15.

 95   Respondent’s Outline of Submissions – paragraph 16.

 96   Ibid.

 97   Applicants Final Submissions – paragraph 5(e).

 98   Ibid.

 99   Respondent’s Outline of Submissions – paragraph 20.

 100   Applicant’s Outline of Submissions – paragraph 15.

 101   Applicant’s Outline of Submissions – paragraph 17.

 102   Applicants Final Submissions – paragraph 5(j) and Statement of James Hayes dated 9 July 2017 at [90]; Statement of James Hayes dated 9 July 2017 at [134(j) and (k)].

 103 Statement of James Hayes dated 4 September 2017 at [50].

 104 Statement of James Hayes dated 4 September 2017 at [125].

 105   Selvachandran v Petron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 106   Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 413 per Lee, Tamberlin and Marshall JJ.

 107   Rode v Burwood Mitsubishi Print R4471 (AIRCFB, Ross VP, Polites SDP, Foggo C, 11 May 1999).

 108   YEW v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

 109   Culpeper v Intercontinental Ship Management PR944547 (AIRCFB, Marsh SDP, Blain DP, Hoffman C, 23 March 2004).

 110   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000).

 111 Statement of Mark Freney dated 19 August 2017 at [24].

 112 Statement of Steven Ford dated 14 September 2017 at [24].

 113   Statement of Ryan Ferricks dated 22 August 2017 at [48(c)] and [77] and Statement of Leon Dodd dated 21 August 2017 at [19] and [77].

 114   Transcript PN 154.

 115 Statement of Leon Dodd dated 21 August 2017 at [64].

 116   Transcript PN 188-189.

 117 Statement of Nathaniel Jorgensen dated 13 September 2017 at [12].

 118   Transcript PN 149 – 152.

 119   Respondent’s Outline of Submissions – paragraph 25.

 120   Ibid.

 121   Respondent’s Outline of Submissions – paragraph 26.

 122   Applicant’s Outline of Submissions – paragraph 23.

 123   Transcript at PN 502 and Applicant’s Outline of Submissions – paragraph 24.

 124 Statement of Mark Freney dated 19 August 2017 at [48].

 125   Transcript at 722-724.

 126 Statement of Mark Freney dated 19 August 2017 at [24].

 127 Statement of James Hayes dated 9 July 2017 at [51].

 128   Transcript PN 673.

 129   Transcript PN 674-675.

 130   Transcript PN 680-681.

 131   Transcript PN 867.

 132   Transcript PN 2364.

 133 Statement of James Hayes dated 9 July 2017 at [48].

 134   Statement of James Hayes dated 9 July 2017 attachment JH 11 page 2.

 135   Transcript PN 373.

 136   Statement of Nathaniel Jorgensen dated 13 September 2017 at [11]

 137   Statement of Nathaniel Jorgensen dated 13 September 2017 at [11]-[12]

 138   Transcript PN 2863.

 139 Statement of James Hayes dated 4 September 2017 at [94].

 140 Statement in Ty Franklin dated 4 September 2017 at [8].

 141 Statement of Lloyd Bull dated 17 August 2017 at [36].

 142   Statement of Ty Franklin dated 9 July 2017 attachment TF1.

 143   Statement of Ryan Ferricks dated 22 August 2017 attachment RF 8.

 144   Statement of James Hayes dated 4 September 2017 at [6] – [8].

 145 Statement of James Hayes dated 9 July 2017 at [40].

 146 Statement of James Hayes dated 9 July 2017 at [89].

 147 Statement of James Hayes dated 9 July 2017 at [137].

 148 Statement of Lloyd Bull dated 17 August 2017 at [16].

 149 Statement of Ryan Ferricks dated 22 August 2017 at [31].

 150   Transcript PN 2721 – 2727.

 151   Transcript PN 2729.

 152   Transcript PN 2738 – 2746.

 153   Statement of Lloyd Bull dated 17 August 2017 at [18] –[23].

 154   Transcript PN 2745.

 155   Transcript PN 1746-1748.

 156 Statement of Lloyd Bull dated 17 August 2017 at [31].

 157 Statement of Lloyd Bull dated 17 August 2017 at [40].

 158   Statement of Ryan Ferricks dated 22 August 2017 at [36] - [37].

 159 Statement of Lloyd Bull dated 17 August 2017 at [41].

 160 Statement of Lloyd Bull dated 17 August 2017 at [45].

 161 Statement of Lloyd Bull dated 17 August 2017 at [46].

 162   Transcript PN 2920.

 163   Form F3 Employer’s response.

 164   Transcript PN 2736-2746.

 165   Transcript PN 2758.

 166   Transcript PN 1648-1651.

 167   Transcript PN 1663-1668.

 168   Transcript PN 1716.

 169   Transcript PN 1694.

 170   Transcript PN 1717 – 1730.

 171   Transcript PN 1732-1735.

 172   Transcript PN 1738-1742.

 173 Statement of Lloyd Bull dated 17 August 2017 at [25].

 174   Transcript PN 1789.

 175 Statement of Lloyd Bull dated 17 August 2017 at [37].

 176   Transcript PN 1624-1628.

 177   Transcript PN 1635.

 178   Transcript PN 1777.

 179 Statement of Lloyd Bull dated 17 August 2017 at [39].

 180   Transcript PN 1643.

 181   Transcript PN 1671.

 182   Transcript PN 1670.

 183   Transcript PN 1646.

 184   Transcript PN 1452.

 185   Transcript PN 803 – 816.

 186 Statement of James Hayes dated 9 July 2017 at [122].

 187 Statement of James Hayes dated 9 July 2017 at [133].

 188 Statement of Leon Dodd dated 21 August 2017 at [52].

 189   Statement of Mark Freney dated 19 August 2017 at [26] Transcript PN 849 – 853.

 190 Statement of Mark Freney dated 19 August 2017 at [28].

 191   Statement of Mark Freney dated 19 August 2017 at [35] – [36] and Transcript PN 1104-1105 , PN 1000.

 192   Transcript PN 1014.

 193   Transcript PN 1624-1628.

 194   Transcript PN 307-308, Exhibit 1 paragraph 32.

 195   Transcript PN 2367 – 2378.

 196   Transcript PN 1750 –1763.

 197   Transcript PN 2275 – 2276.

 198   Statement of Leon Dodd dated 21 August 2017 at [54(l)].

 199   Transcript PN 2341 – 2346.

 200 [2010] FCA 799 at [99].

 201 (1997) 72 IR 186 at 191-192.

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